Food Amendment (Regulation Reform) Act 2009

Food Amendment (Regulation Reform) Act 2009

No. 42 of 2009

table of provisions

SectionPage

Part 1—Preliminary

1Purposes

2Commencement

Part 2—General Amendments

3Definitions

4Reference to proprietors of premises

5New section 4H inserted

4HReference in Food Standards Code to appropriate enforcement agency

6Application of Act to primary food production

7New Part IA inserted

Part IA—Administration and Reporting

7ARole of councils

7BRole of Department

7CAnnual report on food regulation

7DInformation required to be provided by councils

7EDirection by the Minister

8Compliance with Food Standards Code

9Part III substituted

Part III—Orders

19Orders relating to food premises

19AOrders relating to food vending machines and other equipment

10Heading to Part IIIA repealed

11Powers with respect to unclean food handlers etc.

12New section 19BA inserted

19BAAppeals against orders

13Part IIIB substituted

Part IIIB—Food Safety

Division 1—Classification of food premises

19CDeclaration of classes of food premises

19CANotice of intention to make or vary declaration of
classes of food premises

Division 2—Minimum record keeping

19CBMinimum record keeping

Division 3—Food safety programs

19DFood safety programs

19DBRegistration of food safety program templates

19DCStandard food safety programs

19DDQA food safety program

19ERequirement for food safety program

19EARevision of food safety program

19FFood safety program must be kept at premises

Division 4—Food safety supervisors

19GFood safety supervisors

19GARequirement for food safety supervisor

19GBName of supervisor to be provided on request

Division 5—Assessment and audit of food premises

19HAssessment and audit requirements for food premises

19HAFood safety assessments and food safety audits

19IRequirement for food safety assessment

19IADeficiencies identified in food safety assessment by registration authority

19JFood safety assessment conducted by food safety
auditor

19JADeficiencies identified in food safety assessment by
food safety auditor

19KRequirement for food safety audit

19LCertificate of compliance following audit

19MDeficiencies identified in food safety audit

19NFood safety auditor to provide certain information to registration authority

19NARequest by registration authority for copy of report prepared by food safety auditor

Division 6—Food safety auditors

19OOnly approved auditor may conduct audit

19PCertification of food safety auditors

19QAuditor must comply with conditions of certification

19ROffence to impersonate approved auditor

19SConflict of interest

19TRevocation of approval to act as an auditor

19UAudit by council staff

Division 7—Miscellaneous

19UACouncil fees for assessments

19VExemptions concerning food safety

19WDirections concerning food safety

14Analysts

15New heading of Division 1 of Part VI inserted

16Sections 35, 36 and 37 substituted

35Registration authority

35ARequirement to be registered or to notify registration authority

35BRecognition of registration

36Information required to be given to registration
authority

37Notification requirement of Food Standards Code

17Exemption from registration

18New Division 2 of Part VI inserted

Division 2—Notification of premises exempt from registration

38AAProcedure for notification

38ABNotification fee

19New heading to Division 3 of Part VI inserted

20Sections 38A, 38B and 39 substituted

38AInformation required to accompany application for registration or transfer of registration

38BRequirements for registration or transferral of registration

38CInformation required to accompany application for renewal of registration

38DRequirements for renewal of registration

38EConditional registration

38FChange in operation of registered food premises

39Annual inspection of premises by registration authority

21Registration etc. may be made despite minor defects

22Certificates of registration

23Period for which registration lasts

24Revocation or suspension of registration

25Registration fees

26Section 43 substituted

43Records of registration

27New Part VIIIA inserted

Part VIIIA—PUBLICATION OF CONVICTIONS

53CReferences to appeal against conviction

53DRegister of convictions

53EPublication of information on register

53FInformation that must not be included in register

53GObtaining information for inclusion in the register

53HCorrection of register

53IRemoval of record of conviction from register

53JAdditional information

28Secrecy

29New section 58A substituted

58ADelegation by council

30New section 58B inserted

58BMatters occurring outside registration area

31Cost recovery in respect of failure to comply with direction or notice

32Heading to Part XII substituted

33New Part XIII inserted

Part XIII—transitional and Savings provisions for part 2 of the Food Amendment (regulation Reform) Act 2009

64Definitions

65Minimum record keeping

66Food safety program templates

67Inspections

68Audits

69Food safety auditors

70Registration and notification of food premises

71Grounds for revocation or suspension of registration or direction by the Secretary

72Food (Forms and Registration) Regulations 2005

73Register of convictions

74First declaration under section 19C

75Declarations made and exemptions granted before commencement

76Transitional regulations

Part 3—Amendments Relating to Enforceable Undertakings, Sampling Requirements and Infringement Offences

34New Part IIIA inserted

Part IIIA—undertakings

19BBSecretary may accept undertaking

19BCConsent orders and enforcement of undertaking

35Duties of analysts

36New section 31A inserted

31AInterstate analysts

37Section 32 substituted

32Councils to submit samples for analysis

38New section 32A inserted

32ASampling requirement declaration

39New section 56A inserted

56AInfringements

40Payment of penalties

41Limitation on power to make local laws

42New Schedule 1 inserted

SCHEDULE 1—Infringements

Part 4—Amendments Relating to Single Notification or Registration Scheme

43Definitions

44New section 4G substituted

4GFood vending machines deemed to be food premises

45Role of councils

46Annual report on food regulation

47Audit by council staff

48Registration authority

49Section 35A substituted

35ARequirement to be registered or to notify registration authority

50Repeal of section 35B

51Registration etc. may be made despite minor defects

52Registration fees

53New Division 4 of Part VI inserted

Division 4—Single notification or registration scheme

43BApplication of Division to areas of land not within municipal district

43CSingle notification or registration scheme

43DPrincipal premises of food business

43EDeclaration of requirements for notification or registration

43FNotification or registration under the single
notification or registration scheme

43GCertificate of registration

43HDeclaration of requirements for statement of trade

43IStatement of trade

54Delegation by council officers

55Matters occurring outside registration area

56New section Part XIV inserted

Part XIV—Transitional and Savings provisions for Part 4 of Food Amendment (regulation Reform) Act 2009

77Definitions

78Temporary food premises, mobile food premises or
food vending machine currently registered

79Temporary food premises, mobile food premises or
food vending machine for which notification has
been given

57Schedule 1

Part 5—Repeal of Amending Act

58Repeal of amending Act

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Endnotes

SectionPage

Victoria

SectionPage

Food Amendment (Regulation Reform) Act 2009[†]

No. 42 of 2009

[Assented to 5 August 2009]

Food Amendment (Regulation Reform) Act 2009
No. 42 of 2009

The Parliament of Victoriaenacts:

Part 5—Repeal of Amending Act

Food Amendment (Regulation Reform) Act 2009
No. 42 of 2009

Part 1—Preliminary

1Purposes

The purpose of this Act is to amend the Food Act 1984 to—

(a)achieve greater consistency and accountability in the governance of the food regulatory system by—

(i)articulating the respective roles and responsibilities of the different regulators; and

(ii) enshrining a statutory role for the Department of Human Services of providing guidance and leadership to councils in relation to the regulation of food businesses; and

(iii)mandating the collection and publication of data relating to the regulation of food businesses; and

(b)better target regulatory requirements to food safety risk; and

(c)facilitate enforcement of the Act by providing more flexible regulatory mechanisms.

2Commencement

s. 2

(1)This Act (except Parts 2, 3 and 4) comes into operation on the day after the day on which this Act receives the Royal Assent.

(2)Subject to subsection (5), Part 2 comes into operation on a day or days to be proclaimed.

(3)Subject to subsection (6), Part 3 comes into operation on a day or days to be proclaimed.

(4)Subject to subsection (7), Part 4 comes into operation on a day to be proclaimed.

(5)If a provision referred to in subsection (2) does not come into operation before 1 July 2010, it comes into operation on that date.

(6) If a provision referred to in subsection (3) does not come into operation before 1 March 2011, it comes into operation on that date.

(7) If Part 4 does not come into operation before 1 July 2011, it comes into operation on that date.

s. 2

______

Part 2—General Amendments

3Definitions

s. 3

See:
Act No.
10082.
Reprint No. 7
as at
30 January 2006
and amending
Act Nos
97/2005, 80/2006 and 46/2008.
LawToday:
www.
legislation.
vic.gov.au

In section 4(1) of the Food Act 1984—

(a)in the definition of authorized officer, for paragraph (e) substitute—

"(e)in relation to a food premises on land that is not part of a municipal district, the Secretary; or";

(b) omit the definition of declared premises;

(c)omit the definition of food safety program audit;

(d)for the definition of food safety program template substitute—

"food safety program template means a written document that contains a set of instructions to enable the proprietor of a food business to create a food safety program that complies with section 19D;";

(e) in the definition of registration authority for "sections 35 and 36" substitute "section 35";

(f) in the definition of standard food safety program for "19DC" substitute "19DC(1)";

(g) insert the following definitions—

"chief executive officer, of a council, means the person appointed by the council to be its chief executive officer or any person acting in that position;

Director of Consumer Affairs means the person who, for the time being, is employed as Director of Consumer Affairs Victoria under the Public Administration Act 2004;

food safety assessment has the meaning given by section 19HA(1);

food safety audit has the meaning given by section 19HA(2);

mobile food premises means a food premises that is a vehicle;

non-standard food safety program means a food safety program that is not a standard food safety program;

QA food safety program has the meaning given by section 19DD(2);

temporary food premises means a food premises that is—

(a)a tent, stall or other structure that is not permanently fixed to a site; or

(b)a permanent structure not owned or leased by the food business that operates the premises and in which food is handled for sale or from which food is sold by that business on an occasional basis only;".

4Reference to proprietors of premises

s. 4

In section 4F of the Food Act 1984 omit "declared premises,".

5New section 4H inserted

s. 5

After section 4G of the Food Act 1984 insert—

"4H Reference in Food Standards Code to appropriate enforcement agency

For the purposes of any provision of this Act which applies the Food Standards Code, a reference in Standard 3.1.1 of that code to an appropriate enforcement agency is taken to be a reference to the registration authority.".

6Application of Act to primary food production

In section 6A(2) of the Food Act 1984 for "sections 19 and 19B" substitute "Part III".

7New Part IA inserted

After Part I of the Food Act 1984 insert—

"Part IA—Administration and Reporting

7ARole of councils

The role of a council under this Act is to—

(a)carry out the powers and functions vested in it under this Act in accordance with the requirements of this Act;

(b)promote the objectives of this Act;

(d) ensure, to the extent appropriate, that the administration of this Act by the council is consistent with the administration of this Act throughout Victoria by other councils.

7BRole of Department

The role of the Department under this Act is to—

(a)facilitate the exercise of the powers and functions of the Secretary under this Act;

(b)promote the objects of this Act and the consistent administration of this Act by providing information and guidance to councils, authorized officers and food safety auditors;

(c)publish an annual report on food regulation.

7CAnnual report on food regulation

s. 7

(1)For each calendar year the Department must publish an annual report on food regulation.

(2)The annual report must contain the following information—

(a)statistics relating to the registration of food premises under this Act by the Secretary and each council including—

(i)the number of newly registered food premises;

(ii)the number of food premises for which registration was renewed;

(iii) the number of registrations under each class of registration;

(iv)the number of food premises for which registration under this Act was revoked or suspended;

(b) statistics relating to the analysis of food samples submitted by each council under section 32;

(i)the number and nature of infringement notices issued;

(ii) the number of prosecutions and the nature of the alleged offences;

(iii) the number of cases that resulted in either a conviction or a finding of guilt;

(iv) the nature of any sentences or other orders imposed by the court;

(d) a copy of any direction given by the Minister under section 7E and the action taken by councils in response to the direction.

7DInformation required to be provided by councils

s. 7

(1)The Secretary may, by notice published in the Government Gazette, declare—

(a)the information that a council is required to provide to the Department relating to the administration of this Act; and

(b)the intervals at which the information is required to be provided; and

(c)the format or manner in which the information is required to be provided.

(2) Before making a declaration under subsection (1), or making a substantial amendment to the declaration, the Secretary must consult with a body that represents local government.

(3)A council must comply with a declaration made under subsection (1).

7EDirection by the Minister

s. 7

(1)The Minister may give a written direction to a council, or the chief executive officer of the council, in relation to any matter concerning the administration of this Act by the council.

(2) The Minister may give a written direction to a class of councils, or each chief executive officer of a class of councils, in relation to any matter concerning the administration of this Act by the councils.

(3) The Minister may only give a direction under this section if the Minister considers that the direction—

(a)is in the public interest; and

(b)will promote the objectives of this Act or the consistent administration of this Act.

(4) A direction under subsection (1) must not be given in relation to the decision under this Act by a council or an authorized officer with respect to a particular food premises or a particular proprietor.

(5) Unless the Minister considers that a direction is required as a matter of urgency, before giving a direction under this section, the Minister must ensure that—

(a)if the direction is to be given under subsection (1), the council or the chief executive officer has been provided with a draft of the direction and been given an opportunity to comment; or

(b)if the direction is to be given under subsection (2), either—

(i)each council or chief executive officer has been provided with a draft of the direction and been given an opportunity to comment; or

(ii)a body that represents local government has been provided with a draft of the direction and been given an opportunity to comment.

(6)If a council, or the chief executive officer of a council, is given a direction under subsection (1), a copy of the direction must be published in the annual report required to be published by the council under section 131 of the Local Government Act 1989.

______".

8Compliance with Food Standards Code

s. 8

After the penalty at the foot of section 16(1) of the Food Act 1984 insert—

"Note

Under section 37, a person complies with the requirements of the Food Standards Code relating to notification if an application for the registration of a food premises is made, or notification of its operation is given, in accordance with Part VI.".

9Part III substituted

s. 9

For Part III of the Food Act 1984 substitute—

"Part III—Orders

19Orders relating to food premises

(1)This section applies if the relevant authority is satisfied from the report of an authorized officer that—

(a)a food premises is in an unclean or unsanitary condition or in a state of disrepair; or

(b)food being prepared, sold or otherwise handled at a food premises is unsafe or unsuitable; or

(c)food is prepared, sold or otherwise handled at a food premises in a manner that makes it likely the food is unsafe or unsuitable.

(2)The relevant authority may by written order direct that, within a specified time, either or both of the following things must be done—

(a)the food premises must be put into a clean and sanitary condition or be altered or improved to the satisfaction of an authorized officer;

(b)specified steps must be taken to ensure that food prepared, sold or otherwise handled at the food premises is safe and suitable.

(3)The relevant authority may in an order made under subsection (2) or in a subsequent written order direct that until the matters referred to in subsection (2) are complied with—

(a)the food premises must not be kept or used for the sale, or the handling for sale, of any food; or

(b)the food premises must not be kept or used for the preparation of food; or

(c)the food premises must not be used for a specified purpose or for the use of any specified equipment or a specified process.

(4) If an order under this section includes a direction under subsection (3)(a) or (3)(b)—

s. 9

(a)in any case—

(i) the relevant authority may direct that a copy of the order be affixed to a conspicuous part of the premises in such a manner that the order can be read by a member of the public from outside the premises; and

(ii) the relevant authority may, by notice published in a newspaper or by any other means, inform the general public that the order has been made and the terms of the order;

(b) if the relevant authority is a council or a chief executive officer, the relevant authority must notify the Department of the making of the order;

(c) if the relevant authority is not the registration authority for the premises, the relevant authority must notify the registration authority of—

(i)the making of the order; and

(ii)any appeal made under section 19BA against the order and the outcome of the appeal.

Note

Under section 43(2) the record of registration maintained by the registration authority in respect of a food premises must include the details of any order in force under this section that includes a direction under subsection (3)(a) or (b) in relation to the premises.

(5) An order under this section takes effect—

s. 9

(a)when it is given to or served on the proprietor of the food premises; or

(b)if the name and address of the proprietor is unknown, when it is affixed to the premises.

(6) If satisfied that an order made under this section has been complied with, the relevant authority must—

(a)revoke the order; and

(b)give written notice of the revocation of the order in the same manner in which the order was given or served.

(7) A person must not contravene an order made under this section.

Penalty: 120 penalty units.

(8)A person must not remove the copy of an order affixed to a food premises under subsection (4)(a)(i) while that order remains in force.

Penalty: 60 penalty units.

(9) For the purposes of this section, relevant authority means any one of the following—

(a) the Secretary;

(b) the council that is the registration authority for the premises;

(c) if the premises is a temporary food premises or a mobile food premises, the council of the municipal district in which the premises is being operated;

(d) the chief executive officer of a council referred to in paragraph (b) or (c).

19AOrders relating to food vending machines and other equipment

s. 9

(1)This section applies if an authorized officer is satisfied that a food vending machine or other equipment is in an unclean or unsanitary condition, or in a state of disrepair.

(2)The authorized officer may by written order direct that, by a specified time, the food vending machine or other equipment be put into a clean and sanitary condition or be altered or improved to the satisfaction of the authorized officer.